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2007 Federal Sentencing Guidelines

CHAPTER FIVE - PART K - DEPARTURES

2. OTHER GROUNDS FOR DEPARTURE

§5K2.20. Aberrant Behavior (Policy Statement)

(a) IN GENERAL.—Except where a defendant is convicted of an offense
involving a minor victim under section 1201, an offense under
section 1591, or an offense under chapter 71, 109A, 110, or 117, of
title 18, United States Code, a downward departure may be warranted
in an exceptional case if (1) the defendant’s criminal conduct
meets the requirements of subsection (b); and (2) the departure is
not prohibited under subsection (c).

(b) REQUIREMENTS.—The court may depart downward under this policy
statement only if the defendant committed a single criminal
occurrence or single criminal transaction that (1) was committed
without significant planning; (2) was of limited duration; and (3)
represents a marked deviation by the defendant from an otherwise
law-abiding life.

(c) PROHIBITIONS BASED ON THE PRESENCE OF CERTAIN
CIRCUMSTANCES.—The court may not depart downward pursuant to this
policy statement if any of the following circumstances are present:

(1) The offense involved serious bodily injury or death.

(2) The defendant discharged a firearm or otherwise used a firearm
or a dangerous weapon.

(3) The instant offense of conviction is a serious drug trafficking
offense.

(4) The defendant has either of the following: (A) more than one
criminal history point, as determined under Chapter Four (Criminal
History and Criminal Livelihood) before application of subsection
(b) of §4A1.3 (Departures Based on Inadequacy of Criminal History
Category); or (B) a prior federal or state felony conviction, or
any other significant prior criminal behavior, regardless of
whether the conviction or significant prior criminal behavior is
countable under Chapter Four.

Commentary

Application Notes:

1. Definitions.—For purposes of this policy statement:

"Dangerous weapon," "firearm," "otherwise used," and "serious
bodily injury" have the meaning given those terms in the Commentary
to §1B1.1 (Application Instructions).

"Serious drug trafficking offense" means any controlled substance
offense under title 21, United States Code, other than simple
possession under 21 U.S.C. § 844, that provides for a mandatory
minimum term of imprisonment of five years or greater, regardless
of whether the defendant meets the criteria of §5C1.2 (Limitation
on Applicability of Statutory Mandatory Minimum Sentences in
Certain Cases).

2. Repetitious or Significant, Planned Behavior.—Repetitious or
significant, planned behavior does not meet the requirements of
subsection (b). For example, a fraud scheme generally would not
meet such requirements because such a scheme usually involves
repetitive acts, rather than a single occurrence or single criminal
transaction, and significant planning.

3. Other Circumstances to Consider.—In determining whether the
court should depart under this policy statement, the court may
consider the defendant’s (A) mental and emotional conditions; (B)
employment record; (C) record of prior good works; (D) motivation
for committing the offense; and (E) efforts to mitigate the effects
of the offense.

Background: Section 401(b)(3) of Public Law 108–21 directly amended
subsection (a) of this policy statement, effective April 30, 2003.